United States District Court, E.D. Virginia, Richmond Division
JAMES L. JACK, Plaintiff,
MICHAEL L. CHAPMAN, et al., Defendants.
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
L. Jack, a Virginia inmate, has submitted this civil action
under 42 U.S.C. § 1983. The matter is before the Court
on Jack's failure to serve Defendant Rima, the Motion to
Dismiss filed by Defendants Sean Dikeman and Joshua Lowden
("Defendants"), and the Court's obligations
under 28 U.S.C. § 1915A, 42 U.S.C. § l997e(c). For
the reasons stated below, the Motion to Dismiss will be
granted and Jack's claims will be dismissed.
FAILURE TO SERVE DEFENDANT RIMA
Federal Rule of Civil Procedure 4(m),  Jack had 90 days
to serve Defendants. Here, that period commenced on September
22, 2017. While the summons was returned as executed for
Defendant Rima, Deputy Rima was not employed with the Loudoun
County Sheriff's Office at that time and no one had the
authority to accept service on behalf of a former employee.
(See ECF No. 33, at 1-2.) Counsel for Defendants
Dikeman and Lowden notified Jack of this fact in their
submission to the Court on December 13, 2017. (See
id.) More than 90 days elapsed and Jack had not
served Defendant Rima. Accordingly, by Memorandum Order
entered on March 2, 2018, the Court directed Jack, within
eleven (11) days of the date of entry thereof, to show good
cause why the action against Defendant Rima should not be
dismissed without prejudice. Jack has responded, however, he
fails to show good cause for his failure to serve Defendant
Rima. (ECF No. 43.)
(m) requires that, absent a showing of good cause, the Court
must dismiss without prejudice any complaint in which the
plaintiff fails to serve the defendant within the allotted
90-day period. Fed.R.Civ.P. 4(m). Courts within the Fourth
Circuit found good cause to extend the ninety-day time period
when the plaintiff has made "reasonable, diligent
efforts to effect service on the defendant." Venable
v. Dep't of Corr., No. 3:05cv821, 2007 WL 5145334,
at *1 (E.D. Va. Feb. 7, 2007) (quoting Hammad v. Tate
Access Floors, Inc., 31 F.Supp.2d 524, 528 (D. Md.
1999)). Jack makes no showing of good cause for his failure
to serve Defendant Rima. Instead, Jack simply states that
because he is proceeding in forma pauperis, the
Court should "appoint a court investigator to help
[Jack] find and serve Deputy Rima." (Response 1
(capitalization corrected).) Jack then briefly repeats his
claims against Defendant Rima. Jack fails to provide any
information demonstrating that he attempted to find an
address for Defendant Rima after counsel for the remaining
Defendants notified Jack that Defendant Rima had not been
properly served. Neither Jack's incarceration nor his
pro se status is sufficient to establish good cause.
See, e.g., Hansan v. Fairfax Cty. Sch. Bd.,
405 Fed.Appx. 793, 794 (4th Cir. 2010) (citing McNeil v.
United States, 508 U.S. 106, 113 (1993)); Hogge v.
Stephens, No. 3:09CV582, 2011 WL 4352268, at *2 (E.D.
Va. Sept. 16, 2011) (concluding that incarceration is not
good cause or excusable neglect justifying a delay in service
of process) . Because Jack fails to show that he made
reasonable and diligent efforts to effectuate service on
Defendant Rima, his claims against Defendant Rima will be
dismissed without prejudice.
STANDARD OF REVIEW
to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by a prisoner if the
Court determines the action (1) "is frivolous" or
(2) "fails to state a claim on which relief may be
granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C.
§ 1915A. The first standard includes claims based upon
"an indisputably meritless legal theory, " or
claims where the "factual contentions are clearly
baseless." Clay v. Yates, 809 F.Supp. 417, 427
(E.D. Va. 1992) (quoting Neitzke v. Williams, 490
U.S. 319, 327 (1989)). The second standard is the familiar
standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiff's well-pleaded allegations are taken as true
and the complaint is viewed in the light most favorable to
the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require[ ] only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to *give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (second alteration
in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must allege facts sufficient "to raise a right
to relief above the speculative level, " id.
(citation omitted), stating a claim that is "plausible
on its face, " rather than merely
"conceivable." Id. at 570. "A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp., 550 U.S. at 556) . Therefore, in
order for a claim or complaint to survive dismissal for
failure to state a claim, the plaintiff must "allege
facts sufficient to state all the elements of [his or] her
claim." Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing
Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th
Cir. 2002); Iodice v. United States, 289 F.3d 270,
281 (4th Cir. 2002)).
while the Court liberally construes pro se
complaints, Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978), it does not act as the inmate's
advocate, sua sponte developing statutory and
constitutional claims the inmate failed to clearly raise on
the face of his complaint. See Brock v. Carroll, 107
F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring);
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
SUMMARY OF REMAINING CLAIMS
Memorandum Opinion and Order entered on August 30, 2017, the
Court dismissed all claims and Defendants except for the
claims against Defendants Dikeman, Lowden, and Rima. The
remaining claims are as follows:
Claim One: Defendant Dikeman "violated a police order by
placing allegations to a subject on the Internet, via
Facebook, alleging a crime that had taken place in Leesburg,
Va." (Part. Compl. 2, ECF No. 26.)
Claim Two: Defendants Dikeman and Lowden violated Jack's
rights under the Fourth Amendment by arresting him and
searching him "without a warrant, or probable
Claim Three: Defendants Dikeman and Lowden violated
Jack's rights under the Fifth and Sixth Amendments by not
providing Jack an opportunity to contact his attorney before
interrogating him. (Id.)
Claim Four: Defendants Dikeman and Lowden violated Jack's
rights under the Fourteenth Amendment by subjecting him to
unnecessary use of force, which resulted in Jack's back
seeks compensatory and punitive damages. (Id. at 5.)
STATUTE OF LIMITATIONS
first argue that Jack's claims are barred by the statute
of limitations. Under 28 U.S.C. § 1915(e)(2), the Court
must dismiss claims which the relevant statute of limitations
clearly bars. Brown v. Harris, No. 3:10CV613, 2012
WL 12383, at *1 (E.D. Va. Jan. 3, 2012) (citing Eriline
Co. S.A. v. Johnson, 440 F.3d 648, 655-57 (4th Cir.
2006); Nasim v. Warden, Md. House of Corr., 64 F.3d
951, 955 (4th Cir. 1995)). Because no explicit statute of
limitations for 42 U.S.C. § 1983 actions exists, the
courts borrow the personal injury statute of limitations from
the relevant state. Nasim, 64 F.3d at 955 (citing
Wilson v. Garcia, 471 U.S. 261, 266-69 (1985)).
Virginia applies a two-year statute of limitations to
personal injury claims. See Va. Code Ann. §
8.01-243(A) (West 2018). Hence, Jack should have filed his
complaint within two years from when the underlying claims
accrued. “A claim accrues when the plaintiff becomes
aware of his or her injury, United States v.
Kubrick, 444 U.S. 111, 123 (1979), or when he or she
'is put on notice ... to make reasonable inquiry' as
to whether a claim exists." Almond v. Sisk, No.
3:08cv138, 2009 WL 2424084, at *4 (E.D. Va. Aug. 6, 2009)
(omission in original) (quoting Nasim, 64 F.3d at
955). Here, the record reflects that Jack's claims
accrued on either May 7 or 8, 2014. (See Part.
Compl. 2.) Jack filed the Complaint in this action on May 19,
2016.Thus, he is barred from bringing any claim
that accrued prior to May 19, 2014. Although his claims
accrued on May 7 or 8, 2014, Jack argues that he has a viable
basis for tolling the statute of limitations.
argues that he initially filed the claims brought in this
action in a prior case filed in this Court in 2014, making
his claims timely filed. (Resp. Mot. Dismiss 2, ECF No. 40.)
In response, Defendants argue that
Plaintiff's previously dismissed case does not change
that Plaintiff filed the above-styled action on May 19, 2016,
 which is more than a year after his prior case was
dismissed and (2) outside of the two-year limitations.
Accordingly, at the time Plaintiff ...